The Detainees And The Law

Andrew Cohen Says There's Room To Deal On Military Trials

(CBS)  That is, unless the White House and its chief law enforcement officer continue to weasel their way around the issue of the means by which our military personnel extract "evidence" from terror suspects or witnesses.

One of the most remarkable exchanges this past week during Gonzales' testimony before the Senate Armed Services Committee came when Sen. John McCain (R-Ariz.), who knows a little something about inhumane treatment by captors, asked the attorney general if statements "obtained through illegal, inhumane treatment should be admissible" in these military commissions.

The correct answer, of course, is "no." But that's not what our nation's top lawyer said.

After a pregnant pause, which at least one observer found to be "embarrassing," Gonzales said: "The concern that I would have about such a prohibition is, what does it mean (and) how you defined it. I think if we could all reach agreement about the definition of cruel, inhumane and degrading treatment, then perhaps I could give you an answer … Depending on your definition of something as degrading, such as insults, I would say that information should still come in."

Sorry. Wrong answer.

Actually, it's a pathetic and shameful answer. Congress should close this torture loophole the administration seems obsessed with keeping open. It should prohibit the use of any evidence that is acquired by coercive means.

Not only is this fair, it also is likely to generate more accurate information and evidence since study after study (such as they are) indicate that coercive interrogation tactics do not guarantee the collection of good evidence. Put another way, if we have to torture a suspect to make a case against him, perhaps it's not a case worth making.

For a deal to get done, Congress also should ignore completely the White House's new effort to actually broaden the scope of the military commissions to include defendants who are not members of Al Qaeda or the Taliban and who are not alleged to have been directly involved in terrorism.

There will be time later to expand the scope of these courts if they work well in processing out of Guantanamo Bay, Cuba the hundreds of detainees currently held there (the vast majority of whom are alleged Taliban fighters who never killed anyone or planned any terror attacks). As my mother used to say, finish what's on your plate before you ask for more food.

After four long years, Congress should say enough is enough — enough of White House pronouncements about the need for Kafkaesque trials for the detainees, enough of the administration's "Chicken Little" scenarios about what will happen if the men are given decent due process rights, enough of the government's side-stepping on the issue of torture and other coercive means of interrogation.

The sides aren't that far apart. A set of decent and fair (and, most important, constitutional) rules are within reach. Our political leaders owe it to the detainees, and to the rest of us, to finally get this thing moving.